Patricia LaCourse v. Defense Support Services LLC ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13883
________________________
D.C. Docket No. 3:16-cv-00170-RV-HTC
PATRICIA LACOURSE,
Individually and as personal representative
of the Estate of Lt. Colonel Matthew LaCourse,
Plaintiff - Appellant,
versus
PAE WORLDWIDE INCORPORATED, et al.,
Defendants,
DEFENSE SUPPORT SERVICES LLC,
Witness 7,
Witness 8,
Witness 9,
JOHN DOES,
1 through 10 inclusive,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(November 17, 2020)
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Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
NEWSOM, Circuit Judge:
This appeal requires us to decide whether and to what extent the Death on
the High Seas Act, 46 U.S.C. §§ 30301–08, applies to Patricia LaCourse’s
wrongful-death action, in which she alleges that PAE Worldwide Incorporated
failed to properly service and maintain the F-16 that her husband was flying when
it crashed into the Gulf of Mexico. We must also determine whether PAE, which
was operating under a services contract with the United States Air Force, is
shielded from liability by the so-called “government contractor” defense.
For the reasons that follow, we hold that DOHSA governs LaCourse’s
action, that it provides LaCourse’s exclusive remedy and preempts her other
claims, and that PAE is entitled to the protection of the government-contractor
defense.
I
A
The tragic story underlying this appeal began when an Air Force F-16
fighter jet departed Tyndall Air Force Base, east of Panama City, Florida, for a
continuation-training sortie. The only person on board was the pilot, Matthew
LaCourse, a retired Air Force Lieutenant Colonel employed as a civilian by the
Department of Defense. The plan was for Lt. Col. LaCourse to take the jet out
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over the Gulf of Mexico, perform a series of training maneuvers, and then return to
Tyndall. Unfortunately, he never came back. During the flight—for reasons the
parties dispute—the F-16 crashed into the Gulf more than twelve nautical miles
offshore. Sadly, Lt. Col. LaCourse was killed.
Five years prior to the accident, PAE’s predecessor—Defense Support
Services—had been awarded a contract with the Air Force to provide aircraft
service and maintenance at Tyndall, including, as it turns out, on the F-16 that Lt.
Col. LaCourse was flying when he crashed. In performing under the contract, PAE
was required to follow detailed guidelines and adhere to specific standards,
including Air Force Instructions (AFIs), Technical Orders (TOs), and Job Guides
(JGs), all of which were prepared by or on behalf of the Air Force.
F-16s are equipped with two hydraulic systems: A and B. The systems
operate independently of one another and are designed to allow the plane to
continue to fly in the event that one of them fails. Beginning two months before
the crash, the jet at issue here experienced a succession of problems that implicated
one or both of its hydraulic systems. In particular, on separate occasions: (1)
hydraulic fluid was discovered in the outboard flight-control accumulator gauge;
(2) System B’s hydraulically actuated landing gear twice failed to retract during
flight; (3) a hydraulic system pressure-line clamp on System A broke; (4) System
B’s reservoir accumulator was found to be depleted; (5) a pre-flight control check
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revealed a hydraulic leak; (6) System A’s cockpit indicator showed no pressure
and System B’s flight-control accumulator pre-charge was low; and (7) both
systems failed a “confidence run.”1 The F-16 was serviced and parts were repaired
or replaced as these problems were identified.
On the day of the crash, the F-16 experienced two issues shortly before
takeoff. First, the emergency-power unit took longer than expected to activate
during the pre-flight check. Second, and more importantly for our purposes, the jet
initially failed the “pitch-override check”—in which the pilot applies full pressure
to the stick and presses a switch to make the stabilizers at the tail move a few
inches or degrees in a nose-down direction. Despite these two “hiccups,” as one
witness called them, the jet ultimately passed all of its pre-flight checks, which
indicated no problem with the hydraulic systems. The PAE mechanics who
conducted the pre-flight checks were satisfied that the plane was safe to operate,
and they released it for flight.
During the sortie, the F-16 performed a number of aerial maneuvers leading
up to a “pitch-back”—an over-the-shoulder tactical maneuver in which the pilot
uses the pitch axis to rejoin another aircraft. By all accounts, everything leading
up to the pitch-back appeared normal—i.e., no gauge, light, warning, or caution
1
The district court assumed that each of these problems was related to the hydraulic systems for
purposes of deciding LaCourse’s claims on summary judgment but noted that this was “far from
certain.”
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indicated any problem, and there were no reports of any vibrations, shakes, etc.
The issue that led to the crash occurred at the end of the pitch-back maneuver—Lt.
Col. LaCourse appeared to level off and there followed, as one witness described
it, “a period of no data, no inputs, no control or . . . no maneuvers,” at which point
the jet entered a “pitch-down” from about 12,000 feet. There is no evidence that
Lt. Col. LaCourse made any effort to eject or radio for help during his final
descent.2
B
Lt. Col. LaCourse’s widow and personal representative, Patricia LaCourse,
filed this wrongful-death action and jury demand in Florida state court alleging
state-law claims for negligence, breach of warranty, and breach of contract. PAE
removed the case to federal court based on federal-officer jurisdiction, diversity
jurisdiction, and jurisdiction under DOHSA—which, in relevant part, confers
admiralty jurisdiction “[w]hen the death of an individual is caused by wrongful act,
neglect, or default occurring on the high seas.” 46 U.S.C. § 30302. Resisting
PAE’s removal, LaCourse disputed that federal jurisdiction existed on any basis.
2
Although it has no real bearing on the issues before us, it’s worth noting—by way of
background—that the parties vigorously dispute the crash’s cause. LaCourse and her experts
blame the F-16’s dual-hydraulic system, as well as PAE’s failure to discover, diagnose, and
address the problems. PAE and its experts, by contrast, posit that Lt. Col. LaCourse suffered a
G-induced loss of consciousness following the pitch-back.
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Once in federal court, PAE moved for partial summary judgment, arguing
that DOHSA governed LaCourse’s suit and, accordingly, that any potential
recovery should (per the statute) be limited to pecuniary damages. The district
court granted PAE’s motion and held that DOHSA applies and “provides the
exclusive remedy for death on the high seas, preempts all other forms of wrongful
death claims, and only permits recovery for pecuniary damages.”
PAE then filed a motion to strike—or, in the alternative, for partial summary
judgment—asking the district court to strike LaCourse’s state-law breach-of-
warranty and breach-of-contract claims, as well as her jury demand. The district
court again granted PAE’s motion, concluding that because DOHSA preempts all
other wrongful-death causes of action, LaCourse’s warranty and contract claims
had to be stricken. The district court further held that because all that remained
was the DOHSA claim, LaCourse was not entitled to a jury trial.
PAE subsequently moved for final summary judgment, contending that it
was protected by the “government contractor” defense, which extends the United
States’ sovereign immunity to a federal-government contractor, thereby shielding it
from civil liability, provided that, among other things, the contractor complies with
reasonably precise government specifications. The district court once again agreed
with PAE and granted it summary judgment on government-contractor grounds.
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This is LaCourse’s appeal. 3
II
Before us, LaCourse argues that the district court erred in several ways.
First, she contends that the court wrongly held that DOHSA governs this case—
both (1) because by its plain terms DOHSA applies only when a death is caused by
“wrongful act, neglect, or default occurring on the high seas,” whereas the alleged
negligence here occurred on land, and (2) because, in any event, her husband’s
plane crash lacked a “maritime nexus.” Second, LaCourse argues that the district
court erred in striking her breach-of-warranty and breach-of-contract claims
because they don’t seek a remedy broader than DOHSA and therefore aren’t
preempted. Finally, she asserts that the district court improperly applied the
3
As PAE points out, LaCourse’s notice of appeal identified only two of the district court’s three
orders—the order striking her non-DOHSA claims and her jury demand (Doc. 90) and the order
granting PAE final summary judgment based on the government-contractor defense (Doc. 134).
The notice did not specifically state that LaCourse was also appealing the district court’s initial
order concluding that DOHSA applied and supplied her exclusive remedy (Doc. 74). LaCourse
acknowledges the oversight in her reply brief, but as she explains, it is “well settled that an
appeal is not lost if a mistake is made in designating the judgment appealed from where it is clear
that the overriding intent was effectively to appeal.” KH Outdoor, LLC v. City of Trussville, 465
F.3d 1256, 1260 (11th Cir. 2006) (citation omitted). LaCourse’s intent to appeal all three orders
is apparent from the briefing, and PAE addressed all three orders (and constituent issues) in its
response. Moreover, and in any event, our review of the latter two orders necessarily requires us
to review the district court’s determination of DOHSA’s applicability. So in short, LaCourse’s
oversight hasn’t prejudiced either party and, based on our case law, it’s appropriate to let it slide
under the circumstances.
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government-contractor defense because PAE failed to show that it complied with
the Air Force’s reasonably precise specifications for maintaining the F-16.4
We will examine each contention in turn.5
A
The first question we must address is whether DOHSA applies to
LaCourse’s suit. The district court held that it does; LaCourse insists that it
doesn’t.
In relevant part, DOHSA’s operative provision states that
[w]hen the death of an individual is caused by wrongful act, neglect, or
default occurring on the high seas . . . the personal representative of the
decedent may bring a civil action in admiralty against the person or
vessel responsible.
46 U.S.C. § 30302. DOHSA’s applicability matters, among other reasons, because
it limits a plaintiff’s recovery to “compensation for the pecuniary loss sustained by
the individuals for whose benefit the action is brought” and thereby forecloses
recovery for emotional injury and punitive damages. Id. § 30303.
4
LaCourse also contends that the district court erred in striking her jury demand. But because—
for reasons we’ll explain—we hold that the district court’s grant of summary judgment in PAE’s
favor is due to be affirmed, we needn’t reach the jury-demand issue.
5
“We review the district court’s grants of partial summary judgment and summary judgment de
novo, reviewing all facts and reasonable inferences in the light most favorable to the nonmoving
party, and applying the same standard as the district court.” Allison v. McGhan Med. Corp., 184
F.3d 1300, 1306 (11th Cir. 1999).
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1
LaCourse first argues that the district court erred in holding that DOHSA
applies because the “wrongful act, neglect, or default” asserted here—PAE’s
negligent maintenance of the F-16—did not “occur[] on the high seas,” as the
Act’s plain language requires. Rather, she says, the alleged negligence occurred on
land—when the jet was improperly serviced at Tyndall Air Force Base.
Accordingly, LaCourse contends, DOHSA doesn’t apply to her suit.
If we were writing on a clean slate, we would almost certainly agree.
LaCourse is exactly right that, according to its language, DOHSA applies only
when the “death of an individual is caused by wrongful act, neglect, or default
occurring on the high seas.” And she is also right that the alleged “wrongful act,
neglect, or default” here occurred not “on the high seas,” but on terra firma.
Unfortunately for LaCourse, though, we are bound by controlling precedent to
reject her plain-text argument. In Offshore Logistics, Inc. v. Tallentire, for
instance, the Supreme Court observed that “admiralty jurisdiction is expressly
provided under DOHSA [where] the accidental deaths occurred beyond a marine
league from shore.” 477 U.S. 207, 218 (1986) (emphasis added). So too, in In re
Dearborn Marine Service, Inc., our predecessor court, whose decisions bind us,6
recognized that “DOHSA has been construed to confer admiralty jurisdiction over
6
See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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claims arising out of airplane crashes on the high seas though the negligence
alleged to have caused the crash occurred on land.” 499 F.2d 263, 272 n. 17 (5th
Cir. 1974) (emphasis added); accord, e.g., Smith v. Pan Air Corp., 684 F.2d 1102,
1111 (5th Cir. 1982) (“[T]he simple fact that [plaintiff’s] death occurred as a result
of an aircraft crash into the high seas is alone enough to confer jurisdiction under
the DOHSA. . . . [A]dmiralty jurisdiction has repeatedly been extended to cases in
which death or injury occurred on navigable waters even though the wrongful act
occurred on land. The place where the negligence or wrongful act occurs is not
decisive.”) (footnote omitted). It’s not for the three of us to second-guess the
correctness of Offshore Logistics or Dearborn Marine. Because we are bound by
those decisions, we are constrained to agree with the district court that DOHSA
applies despite the fact that PAE’s alleged negligence occurred on land at Tyndall
Air Force Base.
2
LaCourse separately argues that DOHSA doesn’t govern here because the
plane crash that killed her husband lacked a “maritime nexus,” which she insists is
required by the Supreme Court’s landmark admiralty decision in Executive Jet
Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972).
In that case, a plane flying from Ohio to Maine crashed into Lake Erie after
striking a flock of seagulls shortly after takeoff. Id. at 250. Although the crew
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wasn’t injured, the plane was a total loss, so its owners brought an action in
admiralty, alleging negligence by several airport employees. Id. at 250–51. The
Supreme Court held that maritime locality alone—there, Lake Erie’s navigable
waters—is not a sufficient predicate for admiralty jurisdiction in aviation-tort
cases, and that “in the absence of legislation to the contrary,” claims arising from
airplane crashes are not cognizable in admiralty unless the alleged wrong bears “a
significant relationship to traditional maritime activity”—i.e., has a maritime
nexus. Id. at 268. Because the flight in Executive Jet “would have been almost
entirely over land . . . within the continental United States” and was “only
fortuitously and incidentally connected to navigable waters,” the Court determined
that it bore “no relationship to traditional maritime activity”—and, accordingly,
that admiralty jurisdiction was lacking. Id. at 272–73. LaCourse argues that, like
the flight in Executive Jet, her husband’s flight—which was intended to begin and
end at Tyndall Air Force Base—was also only “fortuitously over water” and thus
bore no significant relationship to “traditional maritime activity.”
The problem with LaCourse’s argument is that Executive Jet didn’t involve
DOHSA—there were no injuries, let alone any fatalities to support a wrongful-
death claim. Id. at 250. And significantly, the Supreme Court was careful there to
include a caveat when announcing its holding—namely, that a maritime nexus is
required only “in the absence of legislation to the contrary.” Id. at 268. And
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indeed, the Court in a footnote specifically identified DOHSA as an example of a
statute that would constitute “legislation to the contrary.” Id. at 274 n. 26.
If Executive Jet stood alone, LaCourse’s maritime-nexus argument might
still have a chance. In flagging DOHSA as an example of “legislation to the
contrary,” the Court suggested that the Act might apply only to flights that require
traversing the high seas: “Some such flights, e.g., New York City to Miami,
Florida, no doubt involve passage over ‘the high seas beyond a marine league from
the shore of any State.’ To the extent that the terms of the Death on the High Seas
Act become applicable to such flights, that Act, of course, is ‘legislation to the
contrary.’” Id. (emphasis added). Because Lt. Col. LaCourse’s sortie didn’t
require him to fly over the ocean, the argument would go, it wasn’t one of the
“such flights” that the Executive Jet Court thought DOHSA would cover.
But Executive Jet wasn’t the Supreme Court’s last word on DOHSA’s
application to aviation-based torts. Rather, as already explained, the Court held in
Offshore Logistics that DOHSA applies to all cases—including aviation-related
cases—in which a death occurs on the high-seas. See 477 U.S. at 218. In the
course of so holding, the Court explained the applicability (or non-applicability, as
the case may be) of the maritime-nexus requirement in these terms: “[A]dmiralty
jurisdiction is expressly provided under DOHSA [where] the accidental deaths
occurred beyond a marine league from shore. Even without this statutory
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provision, admiralty jurisdiction is appropriately invoked here under traditional
principles because the accident occurred on the high seas and in furtherance of an
activity bearing a significant relationship to a traditional maritime activity.” Id. at
218–19 (emphasis added). Translation: Where a death occurs on the high seas,
DOHSA applies, full stop; separately, in a non-DOHSA case, maritime jurisdiction
might still exist, provided that there is a maritime nexus. To the extent that
Executive Jet’s New-York-to-Miami footnote left any doubt, Offshore Logistics
clarified that the occurrence of a death on the high seas is a sufficient condition to
DOHSA’s application—without any further maritime-nexus gloss. 7
In sum, then, we agree with the district court that DOHSA doesn’t require a
maritime nexus—and therefore, that because (on the Supreme Court’s
7
In support of her maritime-nexus argument, LaCourse points to Miller v. United States, 725
F.2d 1311 (11th Cir. 1984), in which we assumed (without actually considering or specifically
deciding) that a maritime nexus may be required under DOHSA. See id. at 1315 (concluding
that DOHSA provided jurisdiction over an aviation crash after determining that there was a
maritime nexus on the facts of that case). We think it a full answer to Miller to recognize that it
was decided before the Supreme Court clarified in Offshore Logistics that DOHSA imposes only
a locality requirement, and not a separate maritime-nexus requirement. Other courts have
distinguished Miller on precisely this basis, and we agree with their assessment. See, e.g.,
Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 918 (9th Cir. 2002) (listing Miller
as an example of how “several courts initially presumed” that DOHSA required a maritime
nexus, but noting that those cases came before Offshore Logistics and that now, “the prevailing
view holds that DOHSA established independent requirements for the exercise of admiralty
jurisdiction”); see also Palischak v. Allied Signal Aerospace Co., 893 F. Supp. 341, 345 & n.5
(D.N.J. 1995) (holding that “the requirement of a traditional maritime nexus is not a prerequisite
to the exercise of admiralty jurisdiction pursuant to DOHSA,” and (citing Miller) noting that
“[w]e are unable to locate a single decision after [Offshore Logistics] in which a lower court
required a maritime nexus before applying DOHSA”); Bernard v. World Learning Inc., 2010
WL 11505188, at *8 n.14 (S.D. Fla. June 4, 2010) (acknowledging the circuit precedent in Miller
but explaining that it was decided prior to Offshore Logistics and holding that a maritime nexus
is no longer required in DOHSA cases).
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interpretation) the Act applies whenever a death occurs on the high seas, it governs
LaCourse’s wrongful-death suit.
B
Having concluded that DOHSA applies to LaCourse’s action, we must now
determine whether it provides her exclusive remedy, such that it preempts all other
claims arising out of her husband’s crash.
The district court concluded that LaCourse’s breach-of-warranty and breach-
of-contract claims—both of which she initially brought under Florida’s Wrongful
Death Act, Fla. Stat. § 768.16—had to be stricken on the ground that where
DOHSA applies it “preempts all other forms of wrongful death claims.” LaCourse
contends that the district court erred because, she says, her state-law claims don’t
seek a remedy broader than DOHSA and therefore aren’t preempted.
Again, while it seems to us that LaCourse might have the plain language on
her side—in a section titled “Nonapplication,” DOHSA expressly states that it
“does not affect the law of a State regulating the right to recover for death,” 46
U.S.C. § 30308—the controlling precedent is squarely against her. In particular,
the Supreme Court held in Offshore Logistics that “in light of the language of the
Act as a whole, the legislative history of [§ 30308’s predecessor], the
congressional purposes underlying the Act, and the importance of uniformity of
admiralty law,” the provision that is now codified at § 30308 “was intended only to
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serve as a jurisdictional saving clause, ensuring that state courts enjoyed the right
to entertain causes of action and provide wrongful death remedies both for
accidents arising on territorial waters and, under DOHSA, for accidents occurring
more than one marine league from shore.” 477 U.S. at 221. And, the Court
continued, once it is determined that § 30308 (or there, its predecessor) “acts as a
jurisdictional saving clause, and not as a guarantee of the applicability of state
substantive law to wrongful deaths on the high seas, the conclusion that the state
statutes are pre-empted by DOHSA where it applies is inevitable.” Id. at 232.
Put simply, under Offshore Logistics, § 30308 preserves only state-court
jurisdiction—not state substantive wrongful-death law—and where DOHSA
applies, it preempts all other wrongful-death claims under state or general maritime
law. Accordingly, we hold that the district court was correct to conclude that
DOHSA forecloses LaCourse’s breach-of-warranty and breach-of-contract claims.
C
Having concluded that DOHSA governs LaCourse’s suit and supplies her
exclusive remedy, we must now determine whether LaCourse’s claim is barred by
the so-called “government contractor” defense. Provided that certain conditions
are met, that defense—a creation of federal common law—extends the United
States’ sovereign immunity to a government contractor, thereby protecting it
against civil liability. In essence, it allows the contractor to escape liability on the
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ground that it was “just following orders.” LaCourse asserts that the district court
erred in applying the government-contractor defense because PAE failed to
establish that it conformed to the government’s reasonably specific maintenance
procedures.8
The Supreme Court fashioned the government-contractor defense in Boyle v.
United Technologies Corporation, 487 U.S. 500 (1988). There, the Court held, in
a suit alleging design defects in military equipment, that a private contractor could
partake of the United States’ sovereign immunity so long as the following three
conditions were satisfied: “(1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those specifications; and (3) the
supplier warned the United States about the dangers in the use of the equipment
that were known to the supplier but not to the United States.” Id. at 512.
Although Boyle dealt specifically with government procurement contracts,
we extended its analysis to cover government service contracts in Hudgens v. Bell
Helicopters/Textron, 328 F.3d 1329 (11th Cir. 2003). To account for the
8
LaCourse also argues that PAE shouldn’t be entitled to immunity in this case because its
maintenance contract with the Air Force specifically stated that PAE “shall be . . . responsible for
all injuries to persons or damage to property that occurs as a result of its fault or negligence.”
But the allocation of liability between PAE and the government has nothing to do with PAE’s
immunity from liability to a third party. Given the point of the government-contractor defense—
to allow the government to hire contractors to perform uniquely governmental duties without
subjecting them to the risk of liability to third parties—it would make little sense to interpret the
contract language as LaCourse suggests. The far better—and we think obvious—reading is that
the quoted text merely allocates liability between PAE and the Air Force, not liability between
PAE and a third party.
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contextual switch from a design-defect case to a negligent-maintenance case, we
rejiggered the defense’s three elements as follows: “(1) the United States approved
reasonably precise maintenance procedures; (2) [the contractor’s] performance of
maintenance conformed to those procedures; and (3) [the contractor] warned the
United States about the dangers in reliance on the procedures that were known to
[the contractor] but not to the United States.” Id. at 1335.
Helpfully, the parties have narrowed the focus here. LaCourse concedes that
the Air Force provided reasonably precise maintenance procedures, so there’s no
question that the first Boyle/Hudgens element is satisfied. And the district court
held that the third element “does not apply because (as PAE has argued, and as the
plaintiff has not disputed) there is no contention that PAE had knowledge that it
withheld from the government,” and neither party appears to take issue with that
conclusion. So all seem to agree that the application of the government-contractor
defense here turns on the second Boyle/Hudgens element—whether, in servicing
the F-16, PAE conformed to the Air Force’s reasonably precise maintenance
procedures.
In its summary-judgment motion, PAE argued that its maintenance
conformed to the government’s reasonably precise procedures, and it cited an
abundance of supporting evidence, including deposition testimony from multiple
employees, an Accident Investigation Board maintenance member, and the Safety
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Investigation Board investigator. See Deposition of Timothy Davis at 7:20–8:11,
117:17–118:18 (testifying that all maintenance performed under the contract,
including the service of Lt. Col. LaCourse’s F-16, conformed to the Air Force’s
rules, regulations, and technical orders); see also Deposition of Michael Reeves at
106:4–106:18 (similar); Deposition of Michael Bogaert at 7:8–9:20 (similar);
Deposition of AIB Investigator, Captain Michelle Chiaravelle at 26:10–26:17
(similar); Deposition of SIB Investigator, Senior Master Sergeant Marquell Fallin
at 13:10–13:22, 19:8–19:23 (similar). In light of PAE’s extensive evidence of
compliance, the district court held that LaCourse failed to present evidence that
PAE violated government procedures sufficient to create a genuine dispute of
material fact.
In the “Statement of Facts” section of her opening brief on appeal, LaCourse
identified three Air Force maintenance procedures under the subheading “The
Defendant’s Lack of Compliance with the Air Force’s Specifications and
Instructions.” First, she stated that under AFI 21-101 ¶ 7.1, when there are system
malfunctions of a “chronic nature” the aircraft “should” (her word) be impounded
and prevented from flying until there are “‘investigative efforts’ to uncover the
root cause.” Second, LaCourse said that under AFI 21-101 ¶ 7.5.4 an airplane
“must” be impounded “following an uncommanded flight control movement,”
which she claims occurred when the stabilizers didn’t move as directed during the
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final pre-flight check. Finally, she cited TO 1-1-300, which states that a procedure
called a “functional flight check” is “normally” conducted following maintenance
work and before an airplane is released to fly.
LaCourse’s contention that PAE violated reasonably precise maintenance
procedures—so as to foreclose its reliance on the government-contractor defense—
fails on numerous grounds. As an initial matter, she has almost certainly
abandoned her arguments based on the procedures she cites. We have repeatedly
held that an appellant abandons an argument on appeal when she fails to
“specifically and clearly identif[y]” it or “plainly and prominently” raise it in her
opening brief. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330
(11th Cir. 2004); Cole v. U.S. Att’y Gen., 712 F.3d 517, 530 (11th Cir. 2013). In
particular, we will deem an appellant to have abandoned an argument where she
makes only “passing references” to it in the background sections of her brief—or,
for that matter, even the brief’s argument section. Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014). Under our consistent precedent,
LaCourse’s scattered references to Air Force procedures in the “Statement of the
Facts” section of her opening appellate brief—followed by a single (and vague)
invocation of “AFI 21-101” on a single page in the “Argument” section—were
insufficient to present a legal argument based on PAE’s alleged noncompliance
with them.
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Moreover, and in any event, LaCourse’s arguments fail on the merits. With
respect to AFI 21-101 ¶ 7.1 and TO 1-1-300, it is enough to note that they merely
permit, rather than require, impoundment and functional check flights,
respectively, under specified circumstances. A government contractor doesn’t
violate reasonably precise maintenance procedures by taking a course of action—
repair, replacement, retesting—that those procedures at least implicitly allow.9
Had LaCourse properly presented it, an argument based on AFI 21-101
¶ 7.5.4—which, unlike the other two procedures on which she relies, requires
impoundment following an “uncommanded flight control movement”—might have
been somewhat stronger, but for reasons we will explain, even it would fail.
In resisting the application of the government-contractor defense, LaCourse
cited testimony from Timothy Davis and Michael Bogaert—PAE employees
tasked with the preflight checks on the day of the crash—both of whom testified
that Bogaert (1) didn’t see the stabilizers move as far as they should have during
the initial pitch-override check and (2) instructed Lt. Col. LaCourse to repeat the
9
LaCourse also asserted—albeit again only in the “Statement of Facts” section of her opening
brief—that Lt. Col. LaCourse’s F-16 “should” have been impounded for a “root cause”
investigation. When pressed at oral argument about what procedure required such an
investigation, LaCourse’s counsel pointed to the following language in AFI 21-101 ¶ 7.1:
“Impounding aircraft and equipment enables investigative efforts to systematically proceed with
minimal risk relative to intentional/unintentional actions and subsequent loss of evidence.” Oral
Argument at 32:10. But even if LaCourse had developed this assertion into a legal argument
outside of the background section of her brief, the cited language says nothing about a root-cause
investigation, let alone a mandatory one.
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sequence until the stabilizers performed properly. LaCourse contends that the jet
should have been grounded after the first sequence. PAE counters that Bogaert’s
description of the check indicates that Lt. Col. LaCourse simply wasn’t performing
the sequence properly, not that there was any sort of issue with the control.
By way of background, here is the relevant portion of Bogaert’s testimony:
Q: During the pitch override check, did you see the horizontal stabs
move at all?
A: After I got on the headset, after when [Mr. Davis] had finished
checking brakes, I got on a headset with [Lt. Col. LaCourse] and
asked him if he had done it. He said yes. I told him I didn’t see it.
He said do you want me to do it again. I said yes, if you don’t mind.
At which point he tried to do it again, and they didn’t move. And I
asked him, are you holding the stick full forward, and he wasn’t. He
was just pushing, and they’re reaching over and he’s releasing his
pressure on the stick, is my best guess. But I told him, no, [Lt. Col.
LaCourse], that’s not it, and asked him, are you holding the stick full
forward as you hit that switch. And he did that, and it worked perfect.
He released. I said that’s what I was looking for, technique.
Even aside from abandonment, there are several problems with LaCourse’s
AFI 21-101 ¶ 7.5.4 argument. First, whereas that procedure triggers mandatory
impoundment only upon the occurrence of an “uncommanded . . . movement,”
Bogaert’s testimony describes (at most) the exact converse—a commanded non-
movement. In particular, Bogaert recounted that he saw Lt. Col. LaCourse attempt
to move the stabilizers by pushing the stick (the command) but explained that they
initially “didn’t move” (the non-movement). Accordingly, it’s not at all clear to us
that, by its plain terms, AFI 21-101 ¶ 7.5.4 even applies.
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Second, LaCourse has pointed to no expert testimony or other evidence
connecting attorney argument (or, more precisely, attorney factual recitation) to an
actual AFI 21-101 ¶ 7.5.4 violation. Rather, she offers only lay testimony
describing what happened during the test. She presents no expert (or even lay)
testimony explaining why what happened constituted an “uncommanded flight
control movement” triggering a mandatory impoundment. LaCourse’s evidence,
we think, is insufficient to permit a reasonable jury to find that PAE violated AFI
21-101 ¶ 7.5.4.
Finally, even under the most charitable reading, Bogaert’s testimony
describes not a breach of procedure, but a likely pilot error—Lt. Col. LaCourse,
Bogaert said, simply wasn’t performing the check properly. Bogaert explained that
Lt. Col. LaCourse wasn’t “holding the stick full forward” and that once he
performed the check using the proper technique, it “worked perfect[ly].”
For all these reasons, even if LaCourse had properly presented an argument
that PAE violated AFI 21-101 ¶ 7.5.4, we would reject it.
* * *
In sum, LaCourse failed to produce evidence sufficient to create a genuine
issue of material fact that PAE violated government procedures. LaCourse’s real
argument seems to be that PAE’s mechanics should have dug deeper into the F-
16’s hydraulic-related problems, because, had they done so, they would have
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discovered that the hydraulic systems were compromised. But while what
LaCourse and her experts believe PAE should have done differently surely has
some bearing on the merits of her DOHSA-based negligence claim, it is irrelevant
to the question whether PAE is protected by the government-contractor defense.
All that matters on that score is whether PAE violated reasonably precise
government procedures, and based on the evidence presented from both parties we
conclude that it did not. Accordingly, we affirm the district court’s decision that
PAE is entitled to summary judgment on government-contractor grounds.
III
For the foregoing reasons, we hold that DOHSA applies to and governs
LaCourse’s case, that the Act provides her exclusive remedy, and that PAE is
shielded from liability by the government-contractor defense. Accordingly, we
affirm the district court’s grant of summary judgment in favor of PAE.
AFFIRMED.
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NEWSOM, Circuit Judge, with whom WILSON, Circuit Judge, joins, concurring:
I write separately to explain that, while I agree that we must follow existing
precedent to hold that DOHSA applies to (and thereby supplies the exclusive
wrongful-death remedy for) any claim arising out of a death occurring on the high
seas—even where, as here, the negligence alleged to have caused the death
occurred on land—I do so holding my nose, as DOHSA’s plain language is
squarely to the contrary.
As a refresher, DOHSA’s operative provision states in relevant part that
“[w]hen the death of an individual is caused by a wrongful act, neglect, or default
occurring on the high seas . . . the personal representative of the decedent may
bring a civil action in admiralty against the person or vessel responsible.” 46
U.S.C. § 30302. LaCourse contends (1) that DOHSA applies only when the
negligence occurred on the high seas, without respect to where the death occurred,
and (2) that all here agree that the alleged negligence occurred on land, when the
jet was improperly serviced at Tyndall Air Force Base. Accordingly, she insists,
DOHSA doesn’t govern her case.
LaCourse’s logic, it seems to me, is unassailable. By its plain terms,
DOHSA limits its application to instances in which the “wrongful act, neglect, or
default occur[ed] on the high seas,” regardless of where the resulting death
occurred. Indeed, there is no reasonable reading of the Act by which the phrase
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“occurring on the high seas” modifies the word “death” rather than the phrase
“wrongful act, neglect, or default.” One needn’t even resort to the canons to come
to that conclusion—the plain, ordinary, and obvious meaning of the words is
sufficient. (Having said that, the canons would lead to precisely the same
determination. See Nearest-Reasonable-Referent Canon, Black’s Law Dictionary
(11th ed. 2019); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 152 (2012).)
Somehow, though, precedent—mounds of it, some of it binding on us—has
whistled past the text’s unmistakable focus of the location of the alleged
negligence as the decisive factor for determining DOHSA’s applicability. For
instance—
• Miles v. Apex Marine Corp., 498 U.S. 19, 25 (1990) (“DOHSA . . .
create[ed] a wrongful death action for all persons killed on the high seas.”)
• Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218 (1986) (“Here,
admiralty jurisdiction is expressly provided under DOHSA because the
accidental deaths occurred beyond a marine league from shore.”)
• Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 620 (1978) (noting that
DOHSA creates “a remedy in admiralty for wrongful deaths more than three
miles from shore”)
• In re Dearborn Marine Serv., Inc., 499 F.2d 263, 272 n. 17 (5th Cir. 1974)
(“DOHSA has been construed to confer admiralty jurisdiction over claims
arising out of airplane crashes on the high seas though the negligence
alleged to have caused the crash occurred on land.”)
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• Bergen v. F/V ST. PATRICK, 816 F.2d 1345, 1348 (9th Cir. 1987)
(“[DOHSA] has been held to refer to the site of an accident on the high seas,
not to where . . . the wrongful act causing the accident may have
originated.”)
• Smith v. Pan Air Corp., 684 F.2d 1102, 1111 (5th Cir. 1982) (“[T]he simple
fact that [plaintiff’s] death occurred as a result of an aircraft crash into the
high seas is alone enough to confer jurisdiction under the DOHSA. …
[A]dmiralty jurisdiction has repeatedly been extended to cases in which
death or injury occurred on navigable waters even though the wrongful act
occurred on land. The place where the negligence or wrongful act occurs is
not decisive.”) (footnote omitted)
I could go on and on and on—this is but a small sampling of cases holding that
DOHSA applies to any claim arising out of a death occurring on the high seas,
wholly without regard to where the underlying negligence occurred. But again,
that seems obviously wrong to me.
I’m not the first to recognize the textual disconnect. The Fifth Circuit, for
instance, once remarked that “[a]t first glance, the plain text of this statutory
provision seems to indicate that DOHSA is implicated only when the wrongful act
precipitating death occurs on the high seas.” Motts v. M/V Green Wave, 210 F.3d
565, 569 (5th Cir. 2000). But the court went on: “As subsequent courts have
interpreted DOHSA, however, the statute’s application is not limited to negligent
acts that actually occur on the high seas. The Supreme Court has repeatedly noted
that when the death itself occurs on the high seas, DOHSA applies.” Id. My only
disagreement with the Fifth Circuit’s assessment is the “[a]t first glance” part. I’ve
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read § 30302 over and over—glanced, peered, gawked, and glared—and I can’t
make it say anything other than that DOHSA applies when the alleged act of
negligence—rather than the resulting death—occurs on the high seas.
So how did we get ourselves into this predicament—reading DOHSA to
mean something that it obviously doesn’t say? The answer, apparently, traces back
to century-old admiralty law premised on a “consummation of the injury” theory.
See e.g., In re Dearborn Marine, 499 F.2d at 274 (“Historically maritime
jurisdiction has been measured by the locality of the wrong with locality defined as
where the ‘substance and consummation of the injury’ took place.”) (citing The
Plymouth, 70 U.S. (3 Wall.) 20, 33 (1886)) (footnote omitted). Put simply, if a
claim is premised on a negligence theory, the underlying negligence isn’t complete
until it is “consummated in an actual injury.” Lasky v. Royal Caribbean Cruises,
Ltd., 850 F. Supp. 2d 1309, 1312 (S.D. Fla. 2012). So, the argument goes, a
DOHSA claim for wrongful death based on negligent service—as we have here—
accrues at the time and place where the allegedly wrongful act culminates in an
actual injury (the high seas), not when and where the negligence itself allegedly
occurred (at Tyndall Air Force Base).
That’s fine. It’s just not what the statute says. DOHSA doesn’t say that the
decedent’s personal representative may bring an action “when the death of an
individual occurring on the high seas is caused by wrongful act, neglect, or
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default”; rather, it says that the personal representative can sue “[w]hen the death
of an individual is caused by wrongful act, neglect, or default occurring on the
high seas.” 46 U.S.C. § 30302. End of story.
Bottom line: As in all cases, we should give effect to DOHSA’s
unambiguous language. See, e.g., Estate of Cowart v. Nicklos Drilling Co., 505
U.S. 469, 476 (1992) (“The controlling principle in this case is the basic and
unexceptional rule that courts must give effect to the clear meaning of statutes as
written.”). If it were up to me, I would hold that DOHSA doesn’t apply here
because the alleged negligence—the failure to properly maintain the F-16 that Lt.
Col. LaCourse was piloting when he crashed—occurred on land, not on the high
seas.
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